To briefly recap the litigation, various states and industry groups (“Plaintiffs”) filed challenges to the Clean Water Rule in both the United States district courts and courts of appeal. The federal Joint Panel on Multidistrict Litigation consolidated all of the cases pending in different Courts of Appeals and assigned them to the Sixth Circuit. Cases challenging rules are generally considered “record review” cases. Ordinarily there is no trial. Instead, the cases are decided based on briefs that discuss the “administrative record” of the rulemaking. That “record” is supposed to consist of the proposed rule, public comments on the rule and documents considered by the rulemaking agency.
The Plaintiffs in the cases filed motions to complete the administrative record, asking the Sixth Circuit Court of Appeals to require that EPA and the Corps of Engineers supplement the record with numerous documents that were allegedly omitted improperly from the record, such as federal register notices, posts regarding rulemaking from the EPA blog, internal memos authored by the Corps, and drafts of documents. In its response brief, filed on July 22, 2016, EPA’s main defense was the “deliberative process privilege.”
The deliberative process privilege is unique to the government and is a form of executive privilege, which arises from Exemption 5 to Freedom of Information Act (“FOIA”). The privilege has several purposes:
. . . it serves to assure that subordinates within an agency will feel free to provide the decision maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.
Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); see also N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (“The purpose of the privilege is to protect the decision making processes of government agencies and focus on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”) (internal quotations omitted). The governmental deliberative-process privilege protects only material that is both predecisional and deliberative. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A document is predecisional if it was “generated before the adoption of an agency policy” and “would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.” Coastal States Gas Corp., 617 F.2d at 866. Even though the privilege arises from FOIA, it has been invoked in APA litigation in the past by EPA to avoid supplementing the administrative record with even those documents that had previously been made available to the public. See, e.g., New Mexico v. EPA, 114 F.3d 290, 295-96 (D.C. Cir. 1997).
The theory behind the privilege is that, by guaranteeing confidentiality, the government will receive better advice, which will lead to better decisions. Oftentimes, however, the supposed need for confidential communication and candor conflicts with the principle of maximal transparency in government. The Sixth Circuit will now decide what level of transparency is warranted in reviewing EPA’s latest effort to expand the scope of its authority.
This article was authored by Christopher M. Hunter, Jackson Kelly, PLLC.